### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 19-3172

C HARMELL B ROWN , Petitioner-Appellant ,

v.

A LEX J ONES , Acting Warden, Respondent-Appellee

.

____________________ Appeal from the United States District Court for the Central District of Illinois. No. 17-2212 — Sue E. Myerscough , Judge

.

____________________

A RGUED S EPTEMBER 24, 2020

— O CTOBER 21, 2020

____________________

Before E ASTERBROOK, M ANION , and K ANNE , Circuit Judges

. K ANNE , Circuit Judge . When selecting jurors for Charmell Brown’s murder trial in Illinois state court, the prosecution struck venireperson Devon Ware who had been to the crime scene. As it happens, Ware is also African American. In his petition for habeas relief now before us, Brown argues that the prosecution struck Ware on the basis of his race and that the Illinois Appellate Court unreasonably applied Batson v.2 No. 19-3172

Kentucky, 476 U.S. 79 (1986), when holding otherwise in Brown’s direct appeal.The court made no such error. It correctly noted the prosecution’s apparent reason for striking Ware—that he had been to the crime scene—and found no circumstances giving riseto an inference that the prosecution engaged in racial discrimination. We therefore a ffi rm the district court’s decision denying Brown’s petition for a writ of habeas corpus.

I. B ACKGROUND In 2008, a jury convicted Charmell Brown of three counts of fi rst-degree murder and one count of aggravated ba tt ery with a fi rearm for shooting three people outside of the American Legion building in Champaign, Illinois. The court sentenced Brown to 90 years’ imprisonment. Since his sentencing, Brown has fi led two postconviction motions, a direct appeal, and the petition for federal habeas relief now before us. Brown’s only remaining claim is that the Illinois Appellate Court unreasonably applied Batson when reviewing his claim that the prosecutor in his case struck potential juror Devon Ware because of Ware’s race.Ware was one of two African Americans in the sixty-person venire gathered for Brown’s trial. The clerk called Ware as a potential juror in the fi rst panel of four venirepersons. The court then asked the panel general questions regarding their fi tness as jurors. One question inquired whether anyone was familiar with the American Legion where Brown’s crime took place. Ware said yes, and the other three venirepersons said no. The court followed up and asked Ware if he had visitedthe Legion. Ware answered, “Been on the outside. Not inside.” But he denied that his familiarity with the AmericanNo. 19-3172 3

Legion would a ff ect his service as a juror. The court then tendered questioning to the pros ecutor, who immediately requested that Ware be excused. The court obliged. Brown objected that Ware’s excusal violated Batson . The court overruled the objection and found that Ware was “properly excused” because Br own failed to make “a prima facie case that a discriminator y practice was being conducted by the State.” The court thus did not ask the prosecution to provide “a race neutral explanation” for its strike. Brown raised this issue before the trial court again in his post-trial motions. Once more , the trial court denied theclaim. The court explained that Ware, “unlike every other juror that was questioned,” had been to the American Legion, and therefore Brown failed to establish a prima facie Batson

case. On direct appeal, Brown raised his Batson issue a third time, but the Illinois Appellate Court rejected it. The court noted the relevant factors for establishing a prima facie Batson case, considered the record pertaining to Brown’s voir dire proceedings, and determined that the trial court did notclearly err in ruling that Brown failed to establish a prima facie case of racial discrimination in the jury selection process. To support this conclusion, the court explained that there was no evidence of a pa tt ern of striking African Americans from the jury or of a disproportionate number of strikes used against African Americans and that the other factors “were unremarkable in the overall co ntext of this case.” The court further noted that Ware meaningfully distinguished himself from the other potential jurors by stating that he was familiar with the crime scene. Brown peti tioned for leave to appeal the4 No. 19-3172

court’s decision, but the Illinois Supreme Court denied his request. Brown then sought federal habeas relief. The district court denied Brown’s habeas petition but granted a certi fi cate of appealability on the Batson issue. The district court noted that the prosecutor struck one of two African-American venirepersons but held that Brown “must do more than point to the factthat the prosecutor exercised a peremptory strike on an African American venireperson to establish a prima facie case.” Brown now appeals the district court’s decision.

II. A NALYSIS Brown seeks habeas relief under 28 U.S.C. § 2254 as amended by the Antiterrorism and E ff ective Death Penalty Act of 1996 (“AEDPA”). Federal courts may only grant habeas relief under AEDPA if a state court’s last reasoned opinion ona defendant’s claim (1) was contrary to, or relied on an unreasonable application of, clearly established federal law or (2) rested on an unreasonable factual determination. 28 U.S.C. § 2254(d)(1)–(2).A state court’s decision relies on an “unreasonable application of clearly established federal law” if it identi fi es the correct legal rule but applies th e rule in an objectively unreasonable way. Bynum v. Lemmon , 560 F.3d 678, 683 (7th Cir. 2009)

. Regarding factual determinations, a petitioner “bears the burden of rebu tt ing the state court’s factual fi ndings ‘byclear and convincing evidence,’” and “a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a di ff erent conclusion.” Burt v. Titlow , 571 U.S. 12, 18 (2013) ( fi rst quoting 28 U.S.C.No. 19-3172 5

§ 2254(e)(1); and then quoting Wood v. Allen , 558 U.S. 290, 301 (2010)).

This standard “erects a formid able barrier to federal habeas relief.” Id. at 19. AEDPA requires “a state prisoner [to] show that the state court’s rulin g on the claim being presented in federal court was so lacking in justi fi cation that there wasan error ... beyond any possibility for fairminded disagreement.” Id. at 19–20 (alterations in original) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). In this case, Brown contends that he is entitled to habeasrelief because the Illinois Appellate Court unreasonably applied Batson and based its decision on unreasonable factual determinations. In response, th e State argues that Brown’s petition is untimely and meritless. We disagree with the State’stimeliness argument but agree that Brown’s petition is meritless. A. The State waived its timeliness argument. AEDPA imposes a one-year statute of limitations. 28U.S.C. § 2244(d)(1). But this limitations period is not jurisdictional. See Wood v. Milyard, 566 U.S. 463, 474 (2012). A state respondent may waive the defense by “expressing its clearand accurate understanding of [a] timeliness issue” yet “deliberately steer[ing] the District Court away from the question and towards the merits of [the] petition.” Id. And a federal appellate “court is not at liberty ... to bypass, override, or excuse a State’s deliberate waiver of a limitations defense.” Id. at 466. For example, in Wood, “the State twice in formed the District Court that it ‘w[ould] not challenge, but [is] not conceding’ the timeliness of [the] petition.” Id. at 474 (second alteration in original). The Supreme Court held that the court of appeals6 No. 19-3172

was therefore required to reach the merits of the petition rather than decide the case on timeliness grounds. Id. Much like the state respondent in Wood , the State in this case waived its statute of limitations defense. Initially, the State did fi le a motion to dismiss arguing that Brown’s petition was untimely. But after th e court set an evidentiary hearing on timeliness and appointed counsel to represent Brown, the State asked the court to set a brie fi ng schedule on the merits of the petition instead. Th e State informed the court that “consideration of the merits an d any procedural bars to the claims raised in the instant petition may be more e ffi cient than continued litigation of [Brown’s] equitable tolling argument.” This was textbook waiver. The state “express[ed] its clearand accurate understanding of [a] timeliness issue” yet “deliberately steered the District Court away from the question and towards the merits of [Brown’s] petition.” Id . And the district court acknowledged as much by deciding the merits of this case. We too will therefore consider the merits of Brown’s petition. B. The Illinois Appellate Court reasonably applied Batson.

“In Batson , the Supreme Court established a three-step framework for determining whether [a] prosecut[or] violated [a] defendant’s Equal Protection rights by exercising peremptory challenges in a racially discriminatory manner.” Benne tt v. Gae tz , 592 F.3d 786, 791 (7th Cir. 2010).First, the defendant must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” Second, if the defendant establishes aprima facie case, the “burden shifts to the State to explain adequately the racial exclusion” ... . Third, the trial court must evaluate the plausibility of the prosecution’s reasons, in light of all ofNo. 19-3172 7

the surrounding circumstances, to decide whether the defendant has proved purposeful discrimination. Id. (citations omi tt ed) (quoting Batson , 476 U.S. at 94, 98).

This case turns on Batson ’s fi rst step—the prima facie case. “[A] defendant may establish a prima facie case by o ff ering awide variety of evidence that raises a mere inference of a discriminatory purpose.” Id. (citing Johnson v. California , 545 U.S. 162, 169 (2005); United States v. Stephens , 421 F.3d 503, 512 (7th Cir. 2005)). For example, a defendant may establish a prima facie Batson case by o ff ering proof of a pa tt ern of strikes against African Americans or showing that the prosecutor’s questions and statements during voir dire support an inference of discrimination. See Flowers v. Mississippi , 139 S. Ct. 2228, 2246 (2019); Batson , 476 U.S. at 96–97. “The burden at this stage is light.” Benne tt, 592 F.3d at 791. A challenger must only point to “circumstances raising a suspicion that discrimination occurred.” Franklin v. Sims , 538 F.3d 661, 665 (7th Cir. 2008). Nevertheless, “the prima facie burden is an essential part of the Batson framework, and trial courts may justi fi ably demand that defendants carry this burden before requiring prosecutors to engage in the di ffi cult task of articulating their instin ctive reasons for peremptorily striking a juror.” Benne tt, 592 F.3d at 791 (7th Cir. 2010) (citing Miller-El v. Drekte , 545 U.S. 231, 267–68 (2005) (Breyer, J., concurring)). In this case, the Illinois Appellate Court applied Batson correctly. To start, the court identi fi ed the wide swath of factors to consider in determining whether a defendant has made a prima facie Batson claim. Then the court found that, in Brown’s case, there “was no evidence of any pa tt ern of striking African-Americans from the jury, nor was there any8 No. 19-3172

evidence of a disproportionate number of strikes used against African-Americans,” and “[t]he facts pertaining to the other factors were unremarkable in the overall context of this case.” Brown takes issue with this analysis on three grounds, but none prevails. First, Brown arg ues that the Illinois Appellate Court failed to consider (1) that, because only two membersof the venire were African American, striking Ware dramatically increased the chance that no African Americans would serve on Brown’s jury and (2) that the prosecutor’s decision not to question Ware before excusing him di ff ered from the prosecutor’s treatment of other venirepersons.This argument is not persuasive because the Illinois Appellate Court did consider these circumstances and correctly noted that they “were unremarkab le in the overall context of this case.” Though striking Ware decreased the chance that African Americans would serve on Brown’s jury, that merely highlighted a minor anomaly in th e venire. It did not shed any light on the prosecutor’s strike. Moreover, the prosecutor’s decision to ask more questions of other jurors was unremarkable because Ware distinguished himself by stating that he had been to the crime scene.Second, Brown argues that the Illinois Appellate Court improperly considered that Ware was familiar with the crime scene to explain the prosecution’s strike. Courts considering Batson claims at the prima facie stage may consider “apparent” reasons for a strike. See Stephens , 421 F.3d at 515 (“[I]n considering ‘all relevant circumstances,’ courts may consider distinctions such as [a venireperson’s] a tt orney status in determining whether the inferenc e of discrimination is demonstrated.”). This “normally work s to the government’s advantage, showing that a seemingly discriminatory pa tt ern ofNo. 19-3172 9

peremptories is readily explained by factors apparent in the record.” Id. (citing Maha ff

ey v. Page , 162 F.3d 481, 483 n.1 (7th Cir. 1998); Johnson v. Campbell , 92 F.3d 951, 953 (9th Cir. 1996); Capers v. Singletary, 989 F.2d 442, 446 (11th Cir. 1993)). But the Supreme Court has made clear that the persuasiveness of a Batson challenge is to be determined at the third Batson stage, not the fi rst, and has rejected e ff orts by courts to supply reasons for questionable strikes. Miller-El , 545 U.S. at 252. An inquiry into apparent reasons is thus “relevant only insofar as the strikes are so clearly a tt ributable to that apparent, nondiscriminatory reason that there is no longer any suspicion, or inference, of discrimination.” Franklin , 538 F.3d at 665 (quoting Stephens , 421 F.3d at 516). Here, the Illinois Appellate Co urt was not unreasonable inconsidering Ware’s history with the crime scene as an apparent reason for his excusal—just the opposite. Ware’s statement that he, unlike any other jurors, 1 had been to the crimescene was a highly relevant circumstance for the court to consider. And the prosecutor’s strike was “clearly a tt ributable” to that circumstance because the pr osecutor used the strike immediately upon learning of it.Third, Brown argues that the Illinois Appellate Court imposed too high of a burden at the prima facie stage. For the reasons already stated, this is incorrect. The court reasonably determined that the circumstan ces of Ware’s excuse did not

1 Brown notes that another juror, wh o was not stricken, stated that she knew the address of the American Legi on. This comparator juror does not reveal anything about the strike used against Ware because she, unlike Ware, had not been to the scene of the crime.10 No. 19-3172

“rais[e] a suspicion that discrimination occurred.” Id. (quoting Stephens , 421 F.3d at 512). In sum, we see nothing un reasonable—much less any error beyond the possibility for fairminded disagreement—in the Illinois Appellate Court’s application of Batson . Brown is therefore not entitled to habeas relief on this ground. C. The Illinois Appellate Court’s decision did not rest on any unreasonable factual determinations. Brown argues that the Illinois Appellate Court relied on the unreasonable factual determination that the prosecution in fact did not strike Ware becaus e of his race. Brown leans heavily on the trial court’s stat ement that Ware was “properly excused” and the Illinois Appellate Court’s a ffi rmance of that purported “ fi nding.” There are several issues with this argument. First, the trial court made clear that Ware was “properly excused” because Brown did not establish a prima facie Batson case. The trialcourt never purported to determine any facts about his excuse. Second, the Illinois Appellate Court did not reiterate this

“ fi nding” when reviewing the tr ial court’s decision. The Illinois Appellate Court made clear that it only held that the trialcourt did not err insofar as it found that Brown failed to establish a prima facie Batson case. For those reasons, the Illinois Appellate Court did not rely on the allegedly unreasonable “factual fi nding” that Brown complains of.

III. C ONCLUSION
We AFFIRM the decision of the district court.